Hellaby Resource Services Limited v Body Corporate 197281

[2023] NZHC 513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-869

[2023] NZHC 513

IN THE MATTER

of THE MOUNTAIN VIEW APARTMENTS

BETWEEN

HELLABY RESOURCE SERVICES LIMITED

First Plaintiff and Fourth Counterclaim Defendant

SRG GLOBAL REMEDIATION SERVICES (NZ) LIMITED

Second Plaintiff and First Counterclaim Defendant

AND

BODY CORPORATE 197281

Defendant and Counterclaim Plaintiff

…/2

Hearing:

15 March 2023

Appearances:

N Gillies and A C Eager for SRG Global Remediation Services (NZ) Ltd

JWA Johnson and NG Lawrence and W Revell for Body Corporate 197281

J Goodall KC and T Clark for Maynard Marks Ltd R Tosh for Hobanz Project Assist Ltd

MG Ring KC and AJ Thorn for McCormack Plaintiffs

Judgment:

15 March 2023

JUDGMENT OF LANG J

[on application for recall of judgment]

This judgment was delivered by me on 15 March 2023 at 3 pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

HELLABY RESOURCE SERVICES LTD v BODY CORPORATE 197281 [2023] NZHC 513 [15 March 2023]

MAYNARD        MARKS         LIMITED

Second         Counterclaim          Defendant

HOBANZ   PROJECT  ASSIST LIMITED
Third Counterclaim Defendant

[1]        On 28 February 2023 I delivered a judgment in which I dismissed an application by SRG Global Remediation Services (NZ) Ltd (SRG) for an order adjourning the trial currently scheduled to commence to 10 July 2023.1

[2]        Body Corporate 197281 (the body corporate) has applied for recall of the judgment on the basis that it contains an error that could prejudice the body corporate in the future. SRG opposes the judgment being recalled. The remaining parties are neutral in their stance.

The alleged error

[3]The application arises out of the following passage of the judgment:

[27]    The short answer to this argument is that it is for the body corporate  to establish its claim. Its evidence has now closed other than in relation to issues of quantum that may need to be re-pleaded once SRG provides its discovery. The body corporate will not, however, be permitted to re-formulate its claim or adduce new evidence going beyond issues relating to quantum. This means that the body corporate will be the party to suffer if its evidence is insufficient to establish aspects of its claim. SRG is not prejudiced by this issue.

[4]        The body corporate contends this paragraph is inconsistent with directions I made with the consent of all parties other than SRG prior to the judgment being issued. This contained the following direction:

Body Corporate’s briefs on quantum and any amendments as a result of the SRG discovery to be filed and served. Body Corporate’s amended statement of counterclaim filed, close of

pleadings for the Body Corporate.

26-Apr-23

[5]        The body corporate points out that this direction does not restrict the nature of any amended pleading it may file in the same way that [27] of the judgment does. The direction does not restrict the body corporate to filing pleadings that are amended only in relation to quantum. It is cast in sufficiently wide terms to permit the body corporate to amend its claim in any other way that may be appropriate having regard to issues discovered once SRG provides its discovery.

1      Hellaby Resource Services Ltd v Body Corporate 197281 [2023] NZHC 341.

Decision

[6]        I accept that there is a degree of incongruence between the direction made by consent and [27] of the judgment. However, I do not consider that [27] has any force on a standalone basis. Rather, it was simply an observation made during the course of the judgment determining the application for an adjournment. The direction that was made by consent is the operative direction so far as the filing of pleadings is concerned.

[7]        Furthermore, the Court is restricted in its ability to recall a final judgment. The test enunciated by Wild CJ in Horowhenua County Council v Nash (No 2) still applies.2 Recall of a final judgment is only appropriate where there has been a relevant legislative or regulatory amendment since the hearing, where there has been a new decision of relevance and high authority and “where for some other very special reason justice requires that the judgment be recalled”.3 Any error in the present case plainly does not fall within these categories.

[8]        The Court also has the power to recall a judgment under the so-called “slip rule” to correct an obvious error and the body corporate relies on this in the present case. However, I do not consider the observations made at [27] of the judgment give rise to a factual error. Rather, they constitute a statement of principle. I am therefore satisfied grounds do not exist to recall the judgment as the body corporate seeks.

[9]        However, I consider it remains open to the body corporate to amend its pleadings in such manner as it considers fit once it has received SRG’s discovery. In doing so the body corporate must accept that any substantial amendment will virtually inevitably compromise the trial scheduled for July 2023. In that event the Court will need to give serious consideration to allowing the trial of the claim by the Maynard Marks plaintiffs to proceed first. The interests of justice may require this to be done notwithstanding the obvious difficulties a split trial may potentially cause.

Result

[10]The application for recall of judgment is dismissed.

2      Horowhenua County (No 2) v Nash [1968] NZLR 632.

3      At 633.

Costs

[11]      SRG is the successful party and is entitled to costs on a Category 2B basis together with disbursements as fixed by the Registrar.

Lang J